How Syria might prosecute Assad

The arrival of Syrian rebels in Damascus marked the end former President Bashar Assad's tyranny. Not only is he suspected of using poison gas on his own citizens, but under his rule more than 15,000 people have been tortured to death since the civil war began in 2011, according to the Syrian Network for Human Rights (SNHR). The non-governmental organization blames the Syrian military for 98% of these crimes. It attributes the remaining two percent to militias—including the now leading Islamist group Hayat Tahrir al-Sham (HTS), considered a terrorist organization by some Western countries. The majority of the more than 150,000 arbitrary arrests recorded by the SNHR were carried out the Assad regime.

While Syria's future remains unclear, both Mohammed al-Bashir, head of the transitional government, and Abu Mohammed al-Golani, who leads HTS, have called for a new era of peace and stability.

But Syria will have to reckon with its violent past to make a fresh start, said Patrick Kroker, who heads work on Syria at the European Center for Constitutional and Human Rights (ECCHR). The aim should be to channel the possible impulse for revenge into an appropriate response, he added.

Will Assad be held responsible?

The most obvious court to address Assad's crimes would be the International Criminal Court (ICC) in The Hague. It rules on the responsibility of individuals for war crimes and crimes against humanity, among other things.

But neither Syria nor Russia, to which Assad has fled, are state parties to the ICC. This means that in principle the court has no jurisdiction. Yet the change of power in Syria means that excluding a role for the court it is no longer quite so self-evident, said Claus Kress, professor of criminal and international law at the University of Cologne.

While activating jurisdiction through a United Nations Security Council resolution is likely to fail for the time being due to a Russian veto, a new Syrian government would have the opportunity to declare its accession to the ICC statute, Kress told DW. Under a new government, Syria could also submit to ICC jurisdiction retroactively. "Assad would then also be legally targeted by the ICC,” he said. Still, for political reasons Russia would be unlikely to hand Assad over to the court any time soon, Kress added.

Legal process unclear

ECCHR human rights expert Kroker does not expect that a new Syrian government would join the court, however, saying that the question of justice seems likely be decided within the country itself.

According to German news agency dpa, HTS leader al-Golani has already announced that he will compile a list of former officers involved in torture and bring them to justice—including those who have fled abroad.

To do so, it might advisable to include definitions for crimes against humanity and war crimes in the Syrian penal code, along with examining whether existing judicial structures are suitable for such trials, said law professor Kress.

A model that contains both Syrian and international components will likely arise because there are questions about whether the country has enough specialists like independent judges, said human rights lawyer Kroker. But other experts are also needed: "The most important thing is that this insane amount of evidence is handled professionally,” he said.

International assistance?

For example, mass graves should not be opened without the aid of professionals. And—with all due understanding for the Syrian citizens searching for their loved ones—crime scenes like the notorious Saydnaya Prison and evidence such as secret service documents should not be destroyed. Ideally, these should be be secured by experts, he added.

Initiatives to secure evidence already exist at the UN level, through which the "International, Impartial and Independent Mechanism” has since 2011 collected details on suspected crimes in Syria and made it available to courts.

Trials for crimes in Syria have also already taken place abroad in such countries as Germany and France. For example, in 2022 a former intelligence service colonel was handed a life sentence in Koblenz for crimes against humanity. In the United States, a former head of a Syrian prison was also recently indicted on torture charges.

Until now, this type of procedure was "the best possible way of dealing with the case,” Kroker said. But the situation has now changed with new access to evidence and the suspected perpetrators, he added, suggesting an international initiative to convince Syria's new government to allow support from experts from abroad.

This article was originally published in German.